\nARTICLE VII DETERMINATION AND DISTRIBUTION OF BENEFITS . . . . . . . . . 14
\n 7.1 Distributions Upon Termination of Employment or Disability . 14
\n 7.2 Determination of Benefits Upon Death . . . . . . . . . . . . 14
\n 7.3 Minimum Required Distributions . . . . . . . . . . . . . . . 15
\n 7.4 Time of Distribution . . . . . . . . . . . . . . . . . . . . 16
\n 7.5 Distribution for Minor Beneficiary . . . . . . . . . . . . . 16
\n 7.6 Location of Participant or Beneficiary Unknown . . . . . . . 16
\n 7.7 Advance Distribution for Hardship . . . . . . . . . . . . . 16
\n 7.8 Qualified Domestic Relations Order Distribution . . . . . . 17
\n 7.9 Direct Rollover . . . . . . . . . . . . . . . . . . . . . . 17<\/p>\nARTICLE VIII AMENDMENT, TERMINATION AND MERGERS . . . . . . . . . . . . . 18
\n 8.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 18
\n 8.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . 18
\n 8.3 Merger or Consolidation . . . . . . . . . . . . . . . . . . 19<\/p>\n
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 19
\n 9.1 Participant’s Rights . . . . . . . . . . . . . . . . . . . . 19
\n 9.2 Alienation . . . . . . . . . . . . . . . . . . . . . . . . . 19
\n 9.3 Construction of Plan . . . . . . . . . . . . . . . . . . . . 19
\n 9.4 Legal Action . . . . . . . . . . . . . . . . . . . . . . . . 19
\n 9.5 Prohibition Against Diversion of Funds . . . . . . . . . . . 19
\n 9.6 Bonding . . . . . . . . . . . . . . . . . . . . . . . . . . 20
\n 9.7 Receipt and Release for Payments . . . . . . . . . . . . . . 20
\n 9.8 Action By the Employer . . . . . . . . . . . . . . . . . . . 20
\n 9.9 Named Fiduciaries and Allocation of Responsibility . . . . . 20
\n 9.10 Approval By Internal Revenue Service . . . . . . . . . . . . 21
\n 9.11 Uniformity . . . . . . . . . . . . . . . . . . . . . . . . . 21
\n 9.12 Voting and Tender Rights . . . . . . . . . . . . . . . . . . 21
\n 9.13 Put Option . . . . . . . . . . . . . . . . . . . . . . . . . 21
\n 9.14 Exercise of Put Option . . . . . . . . . . . . . . . . . . . 22
\n 9.15 Changes to Company Stock . . . . . . . . . . . . . . . . . . 22<\/p>\n
ARTICLE X PARTICIPATING EMPLOYERS . . . . . . . . . . . . . . . . . . 22
\n 10.1 Employee Transfer . . . . . . . . . . . . . . . . . . . . . 22
\n 10.2 Participating Employer’s Contribution . . . . . . . . . . . 22
\n 10.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 22
\n 10.4 Discontinuance of Participation . . . . . . . . . . . . . . 22
\n 10.5 Administrator’s Authority . . . . . . . . . . . . . . . . . 23<\/p>\n
ARTICLE XI TOP HEAVY PLANS . . . . . . . . . . . . . . . . . . . . . . 23
\n 11.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 23
\n 11.2 Minimum Contributions . . . . . . . . . . . . . . . . . . . 25
\n 11.3 Coordination With Other Plans . . . . . . . . . . . . . . . 25
\n 11.4 Maximum Benefits . . . . . . . . . . . . . . . . . . . . . . 25
\n 11.5 Aggregation of Affiliated Employers . . . . . . . . . . . . 25
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
-ii-
\n 4
\n WORLDCOM\/MFS INC.
\n EMPLOYEE STOCK BONUS PLAN<\/p>\n
(AMENDED AND RESTATED AS OF DECEMBER 31, 1996)<\/p>\n
INTRODUCTION AND HISTORY OF PLAN<\/p>\n
Effective December 31, 1996, MFS Communications Company, Inc. (“MFS”)
\nmerged with and into WorldCom, Inc. (“WorldCom”) pursuant to a Merger
\nAgreement. As a result of the merger, WorldCom assumed sponsorship of the
\nPlan, and the Plan was amended and restated to redesignate the Plan as
\nsponsored by WorldCom effective December 31, 1996. Under the terms of the
\nMerger Agreement, stock of WorldCom outstanding under the Plan before December
\n31, 1996 was substituted for stock of MFS, as adjusted for the merger exchange
\nratio of 2.1 shares of stock of WorldCom for each outstanding share of MFS
\nstock. Except as adjusted for this exchange ratio, all rights of Participants
\nunder the Plan before December 31, 1996 are preserved hereunder. The amended
\nand restated Plan is intended to change the Plan as required as a result of the
\nmerger but is not otherwise intended to effect substantive amendments to the
\nPlan beyond those required by the merger or to significantly change coverage
\nunder the Plan.<\/p>\n
THE ESTABLISHMENT AND ADOPTION OF THE MFS COMMUNICATIONS EMPLOYEE STOCK
\nBONUS PLAN (the “Plan”), was effective January 2, 1995, by MFS Communications,
\nInc., a Delaware Corporation (the “MFS”). This amendment and restatement is
\neffective December 31, 1996 and the Plan is now known as the WorldCom\/MFS
\nEmployee Stock Bonus Plan.<\/p>\n
W I T N E S S E T H:<\/p>\n
WHEREAS, the Board of Directors of the MFS determined that it was
\ndesirable to adopt a stock bonus plan for the benefit of certain eligible
\nemployees of MFS.<\/p>\n
NOW, THEREFORE, effective January 2, 1995, MFS established and adopted
\nthe Plan for the benefit of certain eligible employees of MFS, and the Plan now
\nreads in its entirety as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS AND CONSTRUCTION<\/p>\n
1.1 DEFINITIONS. The following words and phrases shall have the
\nmeanings set forth below, unless the context clearly indicates otherwise:<\/p>\n
“Act” means the Employee Retirement Income Security Act of 1974, as
\namended.<\/p>\n
“Account” means, with respect to each Participant, the individual
\naccount maintained on behalf of such Participant, to which shall be allocated,
\nin accordance with the provisions of Section 4.3, a portion of the Employer
\nContribution made with respect to any one or more Plan Years.<\/p>\n
“Administrator” means the Employee Stock Bonus Plan Committee appointed
\nby the Board to administer the Plan on behalf of the Company.<\/p>\n
“Affiliated Employer” means any corporation which is a member of a
\ncontrolled group of corporations (as defined in Section 414(b of the Code))
\nwhich includes the Company; any trade or business (whether or not incorporated)
\nwhich is under common control (as defined in Section 414(c) of the Code) with
\nthe Company; any organization (whether or not incorporated) which is a member
\nof an affiliated service group (as defined in Section 414(m) of the Code) which
\nincludes the Company; and any other entity required to be aggregated with the
\nCompany pursuant to Regulations under Section 414(o) of the Code.
\n 5
\n “Anniversary Date” means December 31st; provided, however, if the
\nAnniversary Date would otherwise fall on a Saturday, Sunday, holiday or other
\nnon-business day, the Anniversary Date shall be the first business day
\npreceding December 31st.<\/p>\n
“Beneficiary” means, with respect to any deceased Participant, the
\nperson, determined pursuant to the provisions of Section 7.2, to whom all or a
\nportion of such deceased Participant’s total Vested Account is payable.<\/p>\n
“Board” means the Board of Directors of the Company.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended. All
\nreferences to a provision of the Code shall include a reference to any
\nsuccessor provision.<\/p>\n
“Company” means WorldCom, Inc., a Georgia Corporation, or any successor
\nthereto.<\/p>\n
“Compensation” means, with respect to any Participant and for any Plan
\nYear, the sum of: such Participant’s base gross salary for the calendar year
\nthat ends with or within such Plan Year, performance-based bonuses or
\ncommissions, overtime, shift premiums and cost-of living adjustments actually
\npaid to such Participant by the Employer for the calendar year that ends with
\nor within such Plan Year; and any amounts which are contributed by the Employee
\npursuant to a salary reduction agreement and which are not includible in the
\ngross income of the Participant under Sections 125, 402(e)(3), 402(h)(1)(B),
\nand employee contributions described in Section 414(h)(2) of the Code that are
\ntreated as Employer Contributions.<\/p>\n
For the Plan Year in which a person first becomes a Participant,
\nCompensation shall include amounts otherwise so paid or contributed, as the
\ncase may be, for the calendar year that ends with or within such Plan Year but
\nprior to the date that such person first so becomes a Participant. With the
\nexception of contributions described in Subsection (iii), Compensation shall
\nexclude any amounts contributed on behalf of such Participant to this Plan or
\nto any other employee benefit plan for which a deduction by the Employer is
\npermitted under the Code.<\/p>\n
Notwithstanding the foregoing, Compensation shall be deemed not to
\nexceed $150,000, subject to any adjustment to reflect increases in the cost-of-
\nliving in accordance with Section 401(a)(17)(B) of the Code and, with respect
\nto Plan Years beginning prior to January 1, 1997, after applying the family
\naggregation rules of Section 414(q)(6) of the Code in accordance with Section
\n401(a)(17)(A) of the Code.<\/p>\n
“Effective Date” means January 2, 1995.<\/p>\n
“Employee” means any person who is employed by the Company or a
\nParticipating Employer, other than: an independent contractor, a Leased
\nEmployee,a person whose employment is governed by the terms of a collective
\nbargaining agreement between employee representatives (within the meaning of
\nSection 7701(a)(46) of the Code) and the Employer under which retirement
\nbenefits were the subject of good faith bargaining between the parties, unless
\nsuch agreement expressly provides for coverage in this Plan, and a person
\nwho is a nonresident alien (within the meaning of Section 7701(b)(1)(B) of the
\nCode) and who receives no earned income (within the meaning of Section
\n911(d)(2) of the Code) from the Employer which constitutes income from sources
\nwithin the United States (within the meaning of Section 861(a)(3) of the Code).<\/p>\n
“Employer” means the Company and all Participating Employers.<\/p>\n
“Employer Contribution” means that contribution described in Section
\n4.1.<\/p>\n
“Fair Market Value” of a share of Stock on any given day means: (i) the
\nclosing price per share of Stock on the national securities exchange on which
\nsuch Stock is principally traded, on the next preceding date on which there was
\na sale of Stock on such exchange, or (ii) if the Stock is not listed or
\nadmitted to trading on any such exchange, the average of the highest reported
\nbid and lowest reported asked prices per share of Stock as reported by the
\nNational Association of Securities Dealers Inc. Automated Quotation (“NASDAQ”)
\nsystem on the next<\/p>\n
-2-
\n 6
\npreceding date on which such bid and asked prices were reported, or (iii) if
\nthe Stock is not then listed on any securities exchange or prices therefore are
\nnot then quoted in the NASDAQ system, the value determined by the Board in good
\nfaith.<\/p>\n
“Fiduciary” means any person who (a) exercises any discretionary
\nauthority or discretionary control respecting management of the Plan or
\nexercises any authority or control respecting management or disposition of its
\nassets, (b) renders investment advice for a fee or other compensation, direct
\nor indirect, with respect to any monies or other property of the Plan or has
\nany authority or responsibility to do so, or (c) has any discretionary
\nauthority or discretionary responsibility in the administration of the Plan,
\nincluding, but not limited to, the Trustee, the Employer and its representative
\nbody, and the Administrator.<\/p>\n
“Five Percent Owner” shall mean: with respect to the Company or any
\nAffiliated Employer which is a corporation, any person who owns, of is
\nconsidered as owning, within the meaning of Section 318 of the Code, as
\nmodified by Section 416 thereof, more than five percent (5%) of the outstanding
\nstock of the Company or the Affiliated Employer or more than five percent (5%)
\nof the total combined voting power of all of the stock of the Company or the
\nAffiliated Employer; or with respect to any Affiliated Employer which is not a
\ncorporation, any person who owns, or is considered as owning, within the
\nmeaning of Section 416 of the Code, more than five percent (5%) of the capital
\nor profits interest in the Affiliated Employer<\/p>\n
“Former Participant” means a person who has been a Participant, but who
\nhas ceased to be a Participant for any reason.<\/p>\n
“Highly Compensated Employee” means an Employee described in Section
\n414(q) of the Code and the Regulations.<\/p>\n
“Hour of Service” means (1) each hour for which an Employee is directly
\nor indirectly compensated or entitled to compensation by the Employer for the
\nperformance of duties during the applicable computation period; (2) each hour
\nfor which an Employee is directly or indirectly compensated or entitled to
\ncompensation by the Employer (irrespective of whether the employment
\nrelationship has terminated) for reasons other than performance of duties (such
\nas vacation, holidays, sickness, jury duty, disability, lay-off, military duty
\nor leave of absence) during the applicable computation period; (3) each hour
\nfor which back pay is awarded or agreed to by the Employer without regard to
\nmitigation of damages. These hours will be credited to the Employee for the
\ncomputation period or periods to which the award or agreement pertains rather
\nthan the computation period in which the award, agreement or payment is made.
\nThe same Hours of Service shall not be credited both under (1) or (2), as the
\ncase may be, and under (3).<\/p>\n
Notwithstanding the above, (i) no more than 501 Hours of Service are
\nrequired to be credited to an Employee on account of any single continuous
\nperiod during which the Employee performs no duties (whether or not such period
\noccurs in a single computation period); (ii) an hour for which an Employee is
\ndirectly or indirectly paid, or entitled to payment, on account of a period
\nduring which no duties are performed is not required to be credited to the
\nEmployee if such payment is made or due under a plan maintained solely for the
\npurpose of complying with applicable worker’s compensation, or unemployment
\ncompensation or disability insurance laws; and (iii) Hours of Service are not
\nrequired to be credited for a payment which solely reimburses an Employee for
\nmedical or medically related expenses incurred by the Employee.<\/p>\n
For purposes of this Section, a payment shall be deemed to be made by or
\ndue from the Employer regardless of whether such payment is made by or due from
\nthe Employer directly, or indirectly through, among others, a trust fund, or
\ninsurer, to which the Employer contributes or pays premiums and regardless of
\nwhether contributions made or due to the trust fund, insurer, or other entity
\nare for the benefit of particular Employees or are on behalf of a group of
\nEmployees in the aggregate.<\/p>\n
An Hour of Service must be counted for the purpose of determining a Year
\nof Service, a year of participation for purposes of accrued benefits, a 1-Year
\nBreak in Service, and employment commencement date (or<\/p>\n
-3-
\n 7
\nreemployment commencement date). In addition, Hours of Service will be
\ncredited for employment with other Affiliated Employers. The provisions of
\nDepartment of Labor regulations 2530.200b-2(b) and (c) are incorporated herein
\nby reference.<\/p>\n
“Hourly Employee” means any individual employed by the Employer, who is
\npaid other than on a regular salaried basis.<\/p>\n
“Leased Employee” means those individuals described in Section 414(n)(2)
\nof the Code employed by the Employer, provided, however, if such individuals
\nconstitute 20% of less of such non-highly compensated workforce, then the term
\n“Leased Employees” means only those individuals who are not covered by a plan
\ndescribed in Section 414(n)(5) of the Code.<\/p>\n
“Limitation Year” means the calendar year.<\/p>\n
“Normal Retirement Age” means the Participant’s 62nd birthday.<\/p>\n
“Officer” shall mean an individual who is an executive in the regular
\nand continued service of the Company or an Affiliated Employer.
\nNotwithstanding the preceding, the number of Officers shall not exceed: three
\n(3), if the number of Employees of the Company and its Affiliated Employer does
\nnot exceed thirty (30); ten percent (10%) of the number of Employees of the
\nCompany and its Affiliated Employer, if the number of Employees is more than
\nthirty (30) but less than five hundred (500); and fifty (50), if the number of
\nEmployees of the Company and its Affiliated Employer is five hundred (500) or
\nmore.<\/p>\n
If the number of Officers exceeds the limits set forth in this
\nSubsection (y), then the Officers having the highest annual compensation among
\nall Officers during the applicable period shall be considered Officers for
\npurposes of this Plan.<\/p>\n
“1-Year Break in Service” means the applicable computation period during
\nwhich an Employee has not completed more than 500 Hours of Service with the
\nEmployer. Further, solely for the purpose of determining whether a Participant
\nhas incurred a 1-Year Break in Service, Hours of Service shall be recognized
\nfor “authorized leaves of absence” and “maternity and paternity leaves of
\nabsence.” Years of Service and 1-Year Breaks in Service shall be measured on
\nthe same computation period.<\/p>\n
“Authorized leave of absence” means an unpaid, temporary cessation from
\nactive employment with the Employer pursuant to an established
\nnondiscriminatory policy, whether occasioned by illness, military service, or
\nany other reason.<\/p>\n
A “maternity or paternity leave of absence” means an absence from work
\nfor any period by reason of the Employee’s pregnancy, birth of the Employee’s
\nchild, placement of a child with the Employee in connection with the adoption
\nof such child, or any absence for the purpose of caring for such child for a
\nperiod immediately following such birth or placement. For this purpose, Hours
\nof Service shall be credited for the computation period in which the absence
\nfrom work begins, only if credit therefor is necessary to prevent the Employee
\nfrom incurring a 1-Year Break in Service, or, in any other case, in the
\nimmediately following computation period. The Hours of Service credited for a
\n“maternity or paternity leave of absence” shall be those which would normally
\nhave been credited but for such absence, or, in any case in which the
\nAdministrator is unable to determine such hours normally credited, eight
\n(8)Hours of Service per day. The total Hours of Service required to be
\ncredited for a “maternity or paternity leave of absence” shall not exceed 501.<\/p>\n
“Participant” means any Employee who becomes a participant in the Plan
\nas provided in Section 3.1, and has not for any reason become ineligible to
\nparticipate further in the Plan.<\/p>\n
“Participating Employer” means each Affiliated Employer which is a
\ndomestic corporation.<\/p>\n
-4-
\n 8
\n “Plan” means the WorldCom\/MFS Employee Stock Bonus Plan or any successor
\nthereto.<\/p>\n
“Plan Year” means: (i) the twelve (12) month period commencing on the
\nEffective Date and ending on January 1, 1996, (ii) the period commencing on
\nJanuary 2, 1996 and ending on December 31, 1996, and (iii) beginning on January
\n1, 1997 and thereafter, the twelve (12) month period commencing each January
\n1st of each year and ending the following December 31st.<\/p>\n
“Qualified Domestic Relations Order” shall mean a domestic relations
\norder which meets the requirements of Section 414(p) of the Code.<\/p>\n
“Regulation” means the Income Tax Regulations as promulgated by the
\nSecretary of the Treasury or his delegate, and as amended from time to time.<\/p>\n
“Retired Participant” means a person who has been a Participant, but who
\nhas become entitled to retirement benefits under the Plan.<\/p>\n
“Stock” means the common shares of the Company, par value $0.01 per
\nshare.<\/p>\n
“ShareWorks Program” means the program sponsored by MFS and consisting
\nof the Plan and the MFS Communications Company, Inc. 1995 Deferred Stock
\nPurchase Plan.<\/p>\n
“Terminated Participant” means a person who has been a Participant, but
\nwhose employment has been terminated other than by death, Total and Permanent
\nDisability or retirement.<\/p>\n
“Termination of Employment” means, with respect to any person, the
\nseparation from employment, other than on account of death, with the Company
\nand all Affiliated Employers.<\/p>\n
“Total and Permanent Disability” means a physical or mental condition of
\na Participant resulting from bodily injury, disease, or mental disorder which
\nrenders him incapable of continuing his usual and customary employment with the
\nEmployer. The disability of a Participant shall be determined by a licensed
\nphysician chosen by the Administrator. The determination shall be applied
\nuniformly to all Participants.<\/p>\n
“Trustee” means the person or entity named as trustee herein or in any
\nseparate trust forming a part of this Plan, and any successors.<\/p>\n
“Trust Fund” means the assets of the Plan and Trust as the same shall
\nexist from time to time.<\/p>\n
“Valuation Date” shall mean the last day of March, June, September and
\nDecember as the case may be; provided, however, if the Valuation Date would
\notherwise fall on a Saturday, Sunday, holiday or other non-business day, the
\nValuation Date shall be the first business day preceding the last day of March,
\nJune, September or December, as the case may be.<\/p>\n
“Vested” means, with respect to any Participant, a nonforfeitable right,
\ndetermined in accordance with the provisions of Article VI, to receive an
\neventual distribution of the number of shares of Stock credited to such
\nperson’s Account.<\/p>\n
“Year of Service” means each calendar year ending with or within the
\nPlan Year during which an Employee has at least 1000 Hours of Service. For
\npurposes of determining whether an Employee, other than an Hourly Employee, has
\ncompleted at least 1,000 Hours of Service during any completed calendar year,
\nrather than determining the actual number of Hours of Service which such person
\nhas otherwise completed during any week, such Employee shall be credited with
\n45 Hours of Service for each week for which such Employee is otherwise required
\nto be credited with at least one Hour of Service. For purposes of determining
\nwhether an Hourly<\/p>\n
-5-
\n 9
\nEmployee has completed at least 1,000 Hours of Service during any period, such
\nHourly Employee shall be credited based solely on the actual number of Hours of
\nService which such Hourly Employee otherwise completes.<\/p>\n
Years of Service with any Affiliated Employer shall be recognized.
\nNotwithstanding anything in this Plan to the contrary, Years of Service that
\nended prior to the Effective Date shall be disregarded in determining whether a
\nParticipant is Vested in the shares of Stock credited to his Account.<\/p>\n
1.2 WORD USAGE. Except where otherwise indicated by the context, any
\nmasculine terminology used herein also includes the feminine and neuter, and
\nvice versa, and the definition of any term herein in the singular shall also
\ninclude the plural, and vice versa. The words “hereof,” “herein”, “hereunder,”
\nand other similar compounds of the word “here” shall mean and refer to the
\nentire Plan and not to any particular provision or section. All references to
\nArticles and Sections shall mean and refer to Articles and Sections contained
\nin this Plan, unless otherwise indicated.<\/p>\n
1.3 CALCULATION OF TIME. Except with respect to any acts in respect
\nof the Anniversary Date or any Valuation Date, in determining time periods
\nwithin which an event or action is to take place for purposes of the Plan, no
\nfraction of a day shall be considered and any act, the performance of which
\nwould fall on a Saturday, Sunday, holiday or other non-business day, may be
\nperformed on the next following business day.<\/p>\n
1.4 CONSTRUCTION. It is the intention of the Company that the Plan
\nbe a profit sharing plan for purposes of Section 401(a)(27) of the Codes and a
\nstock bonus plan meeting the requirements of Section 401(a)(23) of the Code,
\nwhich qualifies and is exempt from Federal income taxation under the provisions
\nof Sections 401(a) and 501(a) of the Code and satisfies the applicable
\nprovisions of ERISA, and all provisions of this Plan shall be construed and
\ninterpreted in light of that intention.<\/p>\n
1.5 HEADINGS. The titles and headings of Articles and Sections are
\nintended for convenience of reference only and are not to be considered in
\nconstruction of the provisions hereof.<\/p>\n
ARTICLE II<\/p>\n
ADMINISTRATION<\/p>\n
2.1 POWERS AND RESPONSIBILITIES OF THE COMPANY.<\/p>\n
(a) The Company shall be empowered to appoint and remove the
\nTrustee and the Administrator from time to time as it deems necessary for the
\nproper administration of the Plan to assure that the Plan is being operated for
\nthe exclusive benefit of the Participants and their Beneficiaries in accordance
\nwith the terms of the Plan, the Code, and the Act.<\/p>\n
(b) The Company shall periodically review the performance of
\nany Fiduciary or other person to whom duties have been delegated or allocated
\nby it under the provisions of this Plan or pursuant to procedures established
\nhereunder. This requirement may be satisfied by formal periodic review by the
\nCompany or by a qualified person specifically designated by the Company,
\nthrough day-to-day conduct and evaluation, or through other appropriate ways.<\/p>\n
2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY.<\/p>\n
The Company shall appoint one or more Administrators. Any
\nperson, including, but not limited to, the Employees of the Employer, shall be
\neligible to serve as an Administrator. Any person so appointed shall signify
\nhis acceptance by filing written acceptance with the Employer. An
\nAdministrator may resign by delivering his written resignation to the Employer
\nor be removed by the Employer by delivery of written notice of removal, to take
\neffect at a date specified therein, or upon delivery to the Administrator if no
\ndate is specified.<\/p>\n
-6-
\n 10
\n The Employer, upon the resignation or removal of an
\nAdministrator, shall promptly designate in writing a successor to this
\nposition. If the Employer does not appoint an Administrator, the Employer will
\nfunction as the Administrator.<\/p>\n
2.3 ALLOCATION DELEGATION OF RESPONSIBILITIES.<\/p>\n
If more than one person is appointed as Administrator, the
\nresponsibilities of each Administrator may be specified by the Employer and
\naccepted in writing by each Administrator. In the event that no such
\ndelegation is made by the Employer, the Administrators may allocate the
\nresponsibilities among themselves, in which event the Administrators shall
\nnotify the Employer and the Trustee in writing of such action and specify the
\nresponsibilities of each Administrator. The Trustee thereafter shall accept
\nand rely upon any documents executed by the appropriate Administrator until
\nsuch time as the Employer or the Administrators file with the Trustee a written
\nrevocation of such designation.<\/p>\n
2.4 POWERS AND DUTIES OF THE ADMINISTRATOR.<\/p>\n
The primary responsibility of the Administrator is to administer
\nthe Plan for the exclusive benefit of the Participants and their Beneficiaries,
\nsubject to the specific terms of the Plan. The Administrator shall administer
\nthe Plan in accordance with its terms and shall have the power and discretion
\nto construe the terms of the Plan and to determine all questions arising in
\nconnection with the administration, interpretation, and application of the
\nPlan. Any such determination by the Administrator shall be conclusive and
\nbinding upon all persons. The Administrator may establish procedures, correct
\nany defect, supply any information, or reconcile any inconsistency in such
\nmanner and to such extent as shall be deemed necessary or advisable to carry
\nout the purpose of the Plan; provided, however, that any procedure,
\ndiscretionary act, interpretation or construction shall be done in a
\nnondiscriminatory manner based upon uniform principles consistently applied and
\nshall be consistent with the intent that the Plan shall continue to be deemed a
\nqualified plan under the terms of Section 401(a) of the Code, and shall comply
\nwith the terms of the Act and all regulations issued pursuant thereto. The
\nAdministrator shall have all powers necessary or appropriate to accomplish his
\nduties under this Plan.<\/p>\n
The Administrator shall be charged with the duties of the general
\nadministration of the Plan, including, but not limited to, the following: a)
\nthe discretion to determine all questions relating to the eligibility of
\nEmployees to participate or remain a Participant hereunder and to receive
\nbenefits under the Plan; (ii) to compute, certify, and direct the Trustee with
\nrespect to the amount and the kind of benefits to which any Participant shall
\nbe entitled hereunder; (iii) to authorize and direct the Trustee with respect
\nto all nondiscretionary or otherwise directed disbursements from the Trust;
\n(iv) to maintain all necessary records for the administration of the Plan; (v)
\nto interpret the provisions of the Plan and to make and publish such rules for
\nregulation of the Plan as are consistent with the terms hereof; and (vi) to
\nassist any Participant regarding his rights, benefits or elections available
\nunder the Plan.<\/p>\n
2.5 RECORDS AND REPORTS. The Administrator shall keep a record of
\nall actions taken and shall keep all other books of account, records, and other
\ndata that may be necessary for proper administration of the Plan and shall be
\nresponsible for supplying all information and reports to the Internal Revenue
\nService, Department of Labor, Participants, Beneficiaries and others as
\nrequired by law.<\/p>\n
2.6 APPOINTMENT OF ADVISERS. The Administrator, or the Trustee with
\nthe consent of the Administrator, may appoint counsel, specialists, advisers,
\nand other persons as the Administrator or the Trustee deems necessary or
\ndesirable in connection with the administration of this Plan.<\/p>\n
2.7 INFORMATION FROM EMPLOYER. To enable the Administrator to
\nperform his functions, the Employer shall supply full and timely information to
\nthe Administrator on all matters relating to the Compensation of all
\nParticipants, their Hours of Service, their Years of Service, their retirement,
\ndeath, disability, or termination of employment, and such other pertinent facts
\nas the Administrator may require; and the Administrator shall advise the
\nTrustee of such of the foregoing facts as may be pertinent to the Trustee’s
\nduties under the Plan. The<\/p>\n
-7-
\n 11
\nAdministrator may rely upon such information as is supplied by the Employer and
\nshall have no duty or responsibility to verify such information.<\/p>\n
2.8 PAYMENT OF EXPENSES. All expenses of administration may be paid
\nout of the Trust Fund unless paid by the Company. Such expenses shall include
\nany expense incident to the functioning of the Administrator, including, but
\nnot limited to, fees of accountants, counsel, and other specialists and their
\nagents, and other costs of administering the Plan. Until paid, the expenses
\nshall constitute a liability of the Trust Fund. However, the Employer may
\nreimburse the Trust Fund for any administration expense incurred.<\/p>\n
2.9 MAJORITY ACTIONS. Except where there has been an allocation and
\ndelegation of administrative authority pursuant to Section 2.3, if there shall
\nbe more than one Administrator, they shall act by a majority of their number,
\nbut may authorize one more of them to sign all papers on their behalf.<\/p>\n
2.10 CLAIMS PROCEDURE. Claims for benefits under the Plan may be
\nfiled in writing with the Administrator. Written notice of the disposition of
\na claim shall be furnished to the claimant within 90 days after the application
\nis filed. In the event the claim is denied, the reasons for the denial shall
\nbe specifically set forth in the notice in language calculated to be understood
\nby the claimant, pertinent provisions of the Plan shall be cited, and, where
\nappropriate, an explanation as to how the claimant can perfect the claim will
\nbe provided. In addition, the claimant shall be furnished with an explanation
\nof the Plan’s claims review procedure.<\/p>\n
2.11 CLAIMS REVIEW PROCEDURE. Any Employee, former Employee, or
\nBeneficiary of either, who has been denied a benefit by a decision of the
\nAdministrator pursuant to Section 2.10 shall be entitled to request the
\nAdministrator to give further consideration to his claim by filing with the
\nAdministrator (on a form which may be obtained from the Administrator) a
\nrequest for a hearing. Such request, together with a written statement of the
\nreasons why the claimant believes his claim should be allowed, shall be filed
\nwith the Administrator no later than 60 days after receipt of the written
\nnotification provided for in Section 2.10. The Administrator shall then
\nconduct a hearing within the next 60 days after receipt of the written
\nnotification provided for in Section 2.10. The Administrator shall then
\nconduct a hearing within the next 60 days, at which the claimant may be
\nrepresented by an attorney or any other representative of his choosing and at
\nwhich the claimant shall have an opportunity to submit written and oral
\nevidence and arguments in support of his claim. At the hearing (or prior
\nthereto upon 5 business days’ written notice to the Administrator) the claimant
\nor his representative shall have an opportunity to review all documents in the
\npossession of the Administrator which are pertinent to the claim at issue and
\nits disallowance. Either the claimant or the Administrator may cause a court
\nreporter to attend the hearing and record the proceedings. In such event, a
\ncomplete written transcript of the proceedings shall be furnished to both
\nparties by the court reporter. The full expense of any such court reporter and
\nsuch transcripts shall be borne by the party causing the court reporter to
\nattend the hearing. A final decision as to the allowance of the claim shall be
\nmade by the Administrator within 60 days of receipt of the appeal (unless there
\nhas been an extension of 60 days due to special circumstances, provided the
\ndelay and the special circumstances occasioning it are communicated to the
\nclaimant within the 60 day period). Such communication shall be written in a
\nmanner calculated to be understood by the claimant and shall include specific
\nreasons for the decision and specific references to the pertinent Plan
\nprovisions on which the decision is based.<\/p>\n
ARTICLE III<\/p>\n
PARTICIPATION<\/p>\n
3.1 CONDITIONS FOR ELIGIBILITY.<\/p>\n
(a) A person who is otherwise an Employee shall become a
\nParticipant on such date as is determined pursuant to this Section 3.1. For
\npurposes of this Section 3.1, a “Target Option Recipient” shall mean each
\nperson who (i) was first hired by the Company or an Affiliated Employer on or
\nbefore September 1, 1995 and (ii) had target options remaining to be granted on
\nSeptember 1, 1995 under the MFS Communications Company, Inc. 1993 Stock Plan.<\/p>\n
-8-
\n 12
\n (b) Each Employee who is a Target Option Recipient and who did
\nnot elect to waive participation in the ShareWorks program no later than
\nSeptember 8, 1995 shall become a Participant on the later of: (i) January 2,
\n1995, or (ii) the date on which such person attains age 21; provided that such
\nperson remains an Employee on that date.<\/p>\n
Each Employee who is a Target Option Recipient and who elected to
\nwaive participation in the ShareWorks program by September 8, 1995 shall become
\na Participant on the later of: (i) six months following the date of the last
\ngrant of stock options to such person under the MFS Communications Company,
\nInc. 1993 Stock Plan, or (ii) the date on which such person attains age 21;
\nprovided, that such person remains an Employee on such operative date.<\/p>\n
Notwithstanding the foregoing sentence, a Target Option Recipient
\nwho has otherwise attained age 21 shall become a Participant as of such earlier
\ndate, if any, as is determined by the Administrator.<\/p>\n
(c) Each Employee who is not a Target Option Recipient
\n(regardless of such person’s initial hire date) shall become a Participant on
\nthe later of: (i) such person’s initial date of employment with an Employer,
\n(ii) the date on which such person attains age 21, provided that such person
\nremains an Employee on such date, or (iii) January 2, 1995, provided such
\nperson remains an Employee on such date.<\/p>\n
3.2 EFFECTIVE DATE OF PARTICIPATION. An Eligible Employee shall
\nbecome a Participant effective as of the date on which such Employee met the
\nrequirements of Sections 3.1, provided said Employee was still employed as of
\nsuch date (or if not employed on such date, as of the date of rehire if a 1-
\nYear Break in Service has not occurred).<\/p>\n
In the event an Employee who is not a member of an eligible class
\nof Employees becomes a member of an eligible class, such Employee will
\nparticipate immediately if such Employee has satisfied the minimum age
\nrequirement and would have otherwise previously become a participant.<\/p>\n
3.3 DETERMINATION OF ELIGIBILITY. The Administrator shall determine
\nthe eligibility of each Employee for participation in the Plan based upon
\ninformation furnished by the Employer. Such determination shall be conclusive
\nand binding upon all persons, as long as the same is made pursuant to the Plan
\nand the Act. Such determination shall be subject to review per Section 2.11.<\/p>\n
3.4 TERMINATION OF ELIGIBILITY.<\/p>\n
(a) In the event a Participant shall go from a classification
\nof a an eligible Employee to an ineligible Employee, such Former Participant
\nshall continue to vest in his interest in the Plan for each Year of Service
\ncompleted while a noneligible Employee, until such time as his Participant’s
\nAccount shall be forfeited or distributed pursuant to the terms of the Plan.
\nAdditionally, his interest in the Plan shall continue to share in the earnings
\nof the Trust Fund.<\/p>\n
(b) In the event a Participant is no longer a member of an
\neligible class of Employees and becomes ineligible to participate but has not
\nincurred a 1-Year Break in Service, such Employee will participate immediately
\nupon returning to an eligible class of Employees. If such Participant incurs a
\n1-Year Break in Service, eligibility will be determined under the break in
\nservice rules of the Plan.<\/p>\n
3.5 OMISSION OF EMPLOYEES. If, in any Plan Year, any Employee who
\nshould be included as a Participant in the Plan is erroneously omitted and
\ndiscovery of such omission is not made until after a contribution by his
\nEmployer for the year has been made, the Employer shall make a subsequent
\ncontribution with respect to the omitted Employee in the amount which the said
\nEmployer would have contributed with respect to him had he not been omitted.
\nSuch contribution shall be made regardless of whether or not it is deductible
\nin whole or in part in any taxable year under applicable provisions of the
\nCode.<\/p>\n
-9-
\n 13
\n 3.6 INCLUSION OF INELIGIBLE EMPLOYEE. If, in any Plan Year, any
\nperson who should not have been included as a Participant in the Plan is
\nerroneously included and discovery of such incorrect inclusion is not made
\nuntil after a contribution for the year has been made, the Employer shall not
\nbe entitled to recover the contribution made with respect to the ineligible
\nperson regardless of whether or not a deduction is allowable with respect to
\nsuch contribution. In such event, the amount contributed with respect to the
\nineligible person shall constitute a forfeiture for the Plan Year in which the
\ndiscovery is made.<\/p>\n
3.7 UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF
\n1994. Notwithstanding any provision of this Plan to the contrary,
\ncontributions, benefits and service credits with respect to qualified military
\nservice will be provided in accordance with Section 414(u) of the Code.<\/p>\n
ARTICLE IV<\/p>\n
CONTRIBUTION AND ALLOCATION<\/p>\n
4.1 EMPLOYER’S CONTRIBUTIONS.<\/p>\n
(a) For each Plan Year beginning on or after the Effective
\nDate, the Employer shall contribute such amounts, if any, to the Plan as shall
\nbe determined by the Board in its sole discretion. Such contribution for any
\nsuch Plan Year may be in: (i) shares of Stock, (ii) cash, or a combination of
\nthe two, as shall similarly be determined by the Board in its sole discretion.<\/p>\n
(b) To the extent such contribution for any Plan Year is made
\nin cash, the cash portion of such contribution shall be used by the Trustee, as
\nsoon as practicable following receipt by the Trustee, to purchase shares of
\nStock.<\/p>\n
(c) Notwithstanding the foregoing, the Employer’s
\ncontributions for any Plan Year shall not exceed the maximum amount allowable
\nas a deduction to the Employer under the provisions of Section 404 of the Code.<\/p>\n
4.2 TIME OF PAYMENT OF EMPLOYER’S CONTRIBUTION. The Employer
\nContribution for any Plan Year shall be made not later than the last date
\nprescribed by law, including extensions of time, for the filing of the
\nCompany’s Federal corporate income tax return for such Plan Year.<\/p>\n
4.3 ALLOCATION OF CONTRIBUTION.<\/p>\n
(a) A person shall be eligible to have a portion of the
\nEmployer Contribution for any given Plan Year allocated to such person’s
\nAccount under the Plan only if such person: (i) is a Participant on December
\n31st of such Plan Year; (ii) is an Employee on December 31st of such Plan Year;
\nand (iii) is credited with at least 1,000 Hours of Service during the calendar
\nyear that ends with or within such Plan Year; provided, however, for the Plan
\nYear ending December 31, 1996, a Participant need only complete 997 Hours of
\nService in order to receive an allocation.<\/p>\n
(b) The portion of the total Employer Contribution for any
\nPlan Year allocated to the Account of each such person described in the
\nforegoing clause (a) for such Plan Year (for purposes of this Section 4.3, “an
\nEligible Participant”) shall be determined by multiplying the total Employer
\nContribution for such Plan Year by a fraction, where (A) the numerator of such
\nfraction is such Eligible Participant’s Compensation for the calendar year
\nending with or within such Plan Year and (B) the denominator of such fraction
\nis the total Compensation for the calendar year ending with or within such Plan
\nYear of all persons who are Eligible Participants for such Plan Year.<\/p>\n
(c) The foregoing allocation of the Employer Contribution for
\nany Plan Year shall not be done until after any shares of Stock have first been
\npurchased with such cash, pursuant to Section 4.1(b).<\/p>\n
-10-
\n 14
\n 4.4 FORFEITURES. If a Participant terminates his employment before
\nhis Account is vested, the Participant’s Account shall be forfeited as of the
\nlast day of the Plan Year during which his termination of employment occurred,
\nand shall be used to reduce any Employer contributions made pursuant to Section
\n4.1. If such a Participant again becomes a Participant in the Plan before he
\nincurs five (5) consecutive Breaks in Service, the Employer shall make an
\nadditional contribution to the Plan on his behalf, which is equal to the dollar
\namount of his Account which was forfeited. Such additional contribution shall
\nbe allocated to the Participant’s Account and his vested right to his Account
\nshall thereafter be determined in accordance with Section 6.1.<\/p>\n
4.5 LIMITATION ON ANNUAL ADDITIONS.<\/p>\n
(a) General. Notwithstanding any other provision of the Plan,
\nthe Annual Addition to a Participant’s Accounts for any Limitation Year may not
\nexceed an amount equal to the lesser of: (i) $30,000; or (ii) Twenty-five
\npercent (25%) of the Participant’s compensation for the Limitation Year.<\/p>\n
(b) Coordination with Defined Benefit Plan. In the event that
\nan Employee is a participant in both a defined benefit plan (whether or not
\nterminated) and a defined contribution plan maintained by the Employer (or a
\nRelated Employer), the sum of the Defined Benefit Plan Fraction plus the
\nDefined Contribution Plan Fraction may not exceed 1.0 with respect to any Plan
\nYear beginning prior to January 1, 2000.<\/p>\n
(c) Defined Benefit Plan Fraction Defined. For purposes of
\nthis Section 4.5, the term “Defined Benefit Plan Fraction” shall mean, for any
\nLimitation Year, a fraction: (i) the numerator of which is the Participant’s
\nprojected annual benefit under such defined benefit pension plan maintained by
\nthe Employer or any Related Employer (determined as of the close of such year);
\nand (ii) the denominator of which is the lesser o (A) the product of 1.25 times
\n$90,000, as adjusted in accordance with Section 415(d) of the Code; or (B) the
\nproduct of 1.4 times 100% of the Participant’s average compensation for the
\nthree (3) consecutive years of participation in such defined benefit pension
\nplan during which he received the greatest aggregate compensation from the
\nEmployer.<\/p>\n
(d) Defined Contribution Plan Fraction – Defined. For
\npurposes of this Section 4.5, the term “Defined Contribution Plan Fraction”
\nshall mean, for any Limitation Year, a fraction: (i) the numerator of which is
\nthe sum of the Annual Additions credited to the Participant’s Account under
\nthis Plan and all other defined contribution plans maintained by the Employer
\nor any Related Employer in such Limitation Year and for all prior Limitation
\nYears; and (ii)the denominator of which is the sum of the lesser of the
\nfollowing amounts determined for such Limitation Year and for each prior
\nLimitation Year: (A) the product of 1.25 times the dollar limitation as was in
\neffect under Section 415(c)(1)(A) of the Code and the Regulations, for years
\nbefore this Plan was in effect, or (B) the product of 1.4 times 25% of the
\nParticipant’s compensation for such year.<\/p>\n
(e) Annual Additions Defined. For purposes of this Section
\n4.5, the term “Annual Addition” shall mean, for each Limitation Year the sum
\nof: (i) the portion of the contribution made by the Employer (or a Related
\nEmployer) for such Limitation Year under this Plan and any other defined
\ncontribution plan maintained by the Employer or Related Employer; plus (ii) the
\namount of any forfeitures, if any, allocated to the Participant’s Account for
\nsuch Limitation Year under this Plan or any other such defined contribution
\nplans maintained by the Employer or Related Employer; plus (iii) the amount, if
\nany, of the Participant’s after-tax contributions made under any defined
\ncontribution plan maintained by the Employer or a Related Employer for such
\nLimitation Year; plus (iv) amounts described in Sections 415(1)(1) and
\n419(d)(2) of the Code.<\/p>\n
(f) Compensation – Defined. For purposes of this Section 4.5,
\nthe term “compensation” shall mean a Participant’s wages, salary, fees for
\nprofessional services and other amounts received for personal services actually
\nrendered in the course of employment with the Employer or a Related Employer
\n(including, but not limited to, compensation for services on the basis of
\npercentage of profits, commissions on insurance premiums, tips and bonuses);
\nprovided, however, that the term “compensation” shall not include contributions
\nmade by the Employer or a Related Employer to this or any other plan of
\ndeferred compensation, to the extent that, before the application of the
\nlimitations of Section 415 of the Code, such contributions are not includible
\nin the gross income of the Participant for the taxable year in which
\ncontributed, nor contributions made by the Employer or a Related<\/p>\n
-11-
\n 15
\nEmployer to a Simplified Employee Pension described in Section 408(k) of the
\nCode, to the extent such contributions are deductible by the Participant under
\nSection 219 of the Code, nor any amounts realized on the exercise of non-
\nqualified or incentive stock option, or when restricted stock (or property)
\nheld by a Participant either becomes freely transferable or is no longer
\nsubject to substantial risk of forfeiture, nor any amounts realized from the
\nsale, exchange or other disposition of stock acquired under an incentive stock
\noption, nor any amounts which receive special tax benefits, such as premiums
\nfor group term life insurance, to the extent not includible in the gross income
\nof the Participant for Federal income tax purposes.<\/p>\n
(g) Other Plans. For purposes of applying the limitations of
\nthis Section 4.5, all defined benefit plans maintained by the Employer or a
\nRelated Employer (whether or not terminated) are to be treated as one defined
\nbenefit plan, and all defined contribution plans maintained by the Employer or
\na Related Employer (whether or not terminated) are to be treated as one defined
\ncontribution plan. Any contributions made by the Employee to any defined
\nbenefit plan maintained by the Employer or Related Employer shall be deemed to
\nbe made under a separate defined contribution plan.<\/p>\n
(h) Related Employer – Defined. For purposes of this Section
\n4.5, the term “Related Employer” shall mean any other corporation that is,
\nalong with the Company, a member of a controlled group of corporations (as
\ndefined in Section 414(b) of the Code, as modified by Section 415(h) thereof)
\nor any other trade or business (whether or not incorporated) which, along with
\nthe Company, is under common control (as defined in Section 414(c) of the Code,
\nas modified by Section 415(h) thereof) or any other Employer which is a member
\nof an “affiliated service group” (as such term is defined in Section 414(m) of
\nthe Code or in the Regulations under Section 414(o) of the Code) of which the
\nCompany is a member.<\/p>\n
4.6 ORDER OF REDUCTION. After reducing the annual additions to a
\nParticipant’s account in any other defined contribution plan maintained by the
\nCompany or an Affiliated Employer, if the amounts which would otherwise be
\nallocated to a Participant’s Account must be reduced by reason of the
\nlimitations of Section 4.5, such reduction shall be made in the following order
\nof priority, but only to the extent necessary:<\/p>\n
(a) Participating Employer contributions allocable to such
\nAccount in respect of such Limitation Year and Shares allocable in proportion
\nthereto (without regard to Section 4.5) shall be allocated to the Accounts of
\nother eligible Participants at the end of the current Limitation Year in the
\nmanner provided under Section 4.3, and, to the extent such allocation cannot be
\nmade under Section 4.5, then, to the extent permitted by the Regulations,
\nreallocated at the end of the succeeding Limitation Years in such manner and as
\nprovided in Section 4.6(b).<\/p>\n
(b) Any amount to be allocated under Section 4.6(a) at the end
\nof a succeeding Limitation Year shall be allocated to a suspense account until
\nsuch time as any amount in the suspense account can be allocated to
\nParticipants’ Accounts without having to be reallocated under Section 4.6(a);
\nprovided that, to the extent required by the Regulations, no contribution shall
\nbe made in such a succeeding Limitation Year which would restrict such
\nreallocation.<\/p>\n
Participants are neither permitted nor required to contribute any amounts to
\nthe Plan.<\/p>\n
ARTICLE V<\/p>\n
INVESTMENTS; VALUATIONS<\/p>\n
5.1 INVESTMENT OF PARTICIPANT ACCOUNTS. The Account under the Plan
\nof each Participant shall be invested exclusively in shares of Stock, and cash
\nin lieu of any fractional shares. All cash dividends on shares of Stock
\ncredited to a Participant’s Account shall be used by the Trustee, as soon as
\npracticable, to purchase (on the open market) additional shares of Stock to be
\ncredited exclusively to such Participant’s Account. The number of shares of
\nStock credited to any Participant’s Account shall be appropriately adjusted by
\nthe Trustee to reflect any Stock splits, dividends paid in the form of
\nadditional shares of Stock and similar transactions.<\/p>\n
-12-
\n 16
\n 5.2 VALUATION OF THE TRUST FUND. The Administrator shall direct the
\nTrustee, as of each Anniversary Date, and at such other date or dates deemed
\nnecessary by the Administrator, to determine the net worth of the assets
\ncomprising the Trust Fund as it exists on such date. In determining such net
\nworth, the Trustee shall determine the Fair Market Value of the shares of Stock
\ncomprising the Trust Fund as of such date.<\/p>\n
ARTICLE VI<\/p>\n
VESTING<\/p>\n
6.1 VESTING. Participant shall be 100% Vested in the number of
\nShares of Stock credited to such person’s Account: (i) after three (3) Years
\nof Service; provided, however, that those Years of Service that ended prior to
\nthe Effective Date shall be disregarded for this purpose; (ii) upon the
\nParticipant’s death prior to Termination of Employment; (iii) upon the
\nParticipant’s Total and Permanent Disability; (iv) upon the Participant’s
\nattainment of Normal Retirement Age prior to Termination of Employment; (v)
\nupon the Participant’s actual involuntary Termination of Employment, without
\ncause, after a “Change of Control” (as defined in Section 6.2);(vi) upon the
\nParticipant’s “Constructive Involuntary Termination of Employment” (as defined
\nin Section 6.2) after a “Change of Control”; or (vii) upon the Participant’s
\nmeeting the “Rule of 62” prior to Termination of Employment. A Participant
\nmeets the Rule of 62 if (A) such person is at least age 55 and (B) the sum of
\nsuch person’s age and Years of Service (provided, however, that Years of
\nService that ended prior to the Effective Date shall be disregarded for this
\npurpose) equal at least 62.<\/p>\n
Prior to the occurrence of one of the aforementioned events, a
\nParticipant shall be 0% Vested in the number of Shares credited to such
\nperson’s Account.<\/p>\n
6.2 DEFINITIONS. The following terms shall, solely for purposes of
\nthis Article VI, have following meanings:<\/p>\n
(a) “Change of Control” means, with respect to the Company,
\n(i) the acquisition by any person, entity or “group,” within the meaning of
\nSection 13(d)(3) or 14(d)(2) of the Exchange Act, other than the Company or any
\nof its affiliates, or any employee benefit plan of the Company or any of its
\naffiliates, of beneficial ownership (within the meaning of Rule 13d-3
\npromulgated under the Exchange Act) of more than 50% of either (x) the then
\noutstanding shares of Stock or (y) the combined voting power of the Company’s
\nthen outstanding voting securities, (ii) approval by the stockholders of the
\nCompany of a reorganization, merger or consolidation, in each case, with
\nrespect to which persons who were the stockholders of the Company immediately
\nprior to such reorganization, merger or consolidation, do not, immediately
\nthereafter, own more than 50% of the combined voting power entitled to vote
\ngenerally in the election of directors of the reorganized, merged or
\nconsolidated company’s then outstanding voting securities, or a liquidation or
\ndissolution of the Company or the sale of all or substantially all of the
\nassets of the Company.<\/p>\n
(b) “Constructive Involuntary Termination of Employment”
\nmeans, with respect to any Participant, such person’s voluntary Termination of
\nEmployment within 90 days following (A) a material reduction in such person’s
\ncompensation (including applicable fringe benefits), without such person’s
\nconsent; (B) such person’s demotion or the diminution in such person’s
\nposition, authority, duties or responsibilities, without cause and without such
\nperson’s consent; or (C) the relocation of such person’s principal place of
\nemployment, without such person’s consent.<\/p>\n
6.3 CHANGE IN VESTING SCHEDULE. The computation of a Participant’s
\nVested interest in the Plan shall not be reduced as the result of any direct or
\nindirect amendment to this Plan. In the event that the Plan is amended to
\nchange or modify any vesting schedule otherwise set forth under Section 6.1, a
\nParticipant with at least three (3) Years of Service as of the expiration date
\nof the election period may elect to have his nonforfeitable percentage computed
\nunder the Plan without regard to such amendment. If a Participant fails to
\nmake such election, then such Participant shall be subject to the new vesting
\nschedule. The Participant’s election period shall commence on the adoption
\ndate of the amendment and shall end 60 days after the latest of: (i) the
\nadoption date of the amendment,<\/p>\n
-13-
\n 17
\n(ii) the effective date of the amendment, or (iii) the date the Participant
\nreceives written notice of the amendment from the Employer or Administrator.<\/p>\n
ARTICLE VII<\/p>\n
DETERMINATION AND DISTRIBUTION OF BENEFITS<\/p>\n
7.1 DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT OR DISABILITY.<\/p>\n
(a) If, upon a Participant’s Termination of Employment, such
\nperson is Vested in his Account under the Plan, the Trustee shall distribute
\nthe value of such Participant’s Account in accordance with the provisions of
\nthis Section 7.1. If, upon a Participant’s Termination of Employment, such
\nperson is not Vested in his Account under the Plan, he shall not be entitled to
\nreceive any distribution from his Account under the Plan, and the value of such
\nAccount shall be forfeited in accordance with the provisions of Section 4.4.<\/p>\n
(b) In the event of a Participant’s Total and Permanent
\nDisability prior to his Termination of Employment, (i) all amounts credited to
\nsuch Participant’s Account shall become fully Vested; and (ii) the Trustee
\nshall distribute the value of such Participant’s Account in accordance with the
\nprovisions of this Section 7.1.<\/p>\n
(c) If, as of the date of the event described in whichever of
\nthe foregoing subsections shall apply, the value of the Participant’s Vested
\nAccount does not exceed $3,500, and has never exceeded $3,500 at the time of
\nany prior distribution, the Administrator shall direct the Trustee to
\ndistribute such benefit, without such Participant’s consent, as soon as
\npracticable following the occurrence of such event.<\/p>\n
(d) If, as of the date of the event described in whichever of
\nthe foregoing subsections (a) or (b) shall apply, the value of the
\nParticipant’s Vested Account exceeds $3,500, or exceeded $3,500 at the time of
\nany prior distribution, the distribution from such Participant’s Account may
\nnot, except as provided in the following sentence, be paid without such
\nParticipant’s written consent. Subject to Section 7.3, unless the Participant
\nelects otherwise, the distribution of his Account shall commence no later than
\none year after the close of the Plan Year: (i) in which the Participant
\nseparates from service by reason of attainment of Normal Retirement Age, the
\noccurrence of such Total and Permanent Disability or death, or (ii) which is
\nthe fifth anniversary following the close of the Plan Year in which the
\nParticipant otherwise separates from service, except that this clause shall not
\napply if the Participant is reemployed by the Employer before such date.<\/p>\n
(e) Subject to Section 7.3, and unless the Participant elects
\notherwise to receive his distribution in the form of a single lump sum,
\ndistribution of a Participant’s Vested Account balance shall be made in
\nsubstantially equal periodic payments (not less frequently than annually under
\nrules adopted by the Administrator and uniformly applicable to all
\nParticipants) over a period equal to the greater of (a) five years, or (b) in
\nthe case of a Participant with an Account which has a value in excess of
\n$500,000 (as adjusted pursuant to Section 409(o)(2) of the Code) on the
\nValuation Date coincident with or immediately preceding the date distributions
\nare scheduled to commence, five years plus one additional year (but not more
\nthan five additional years) for each $100,000 (as adjusted pursuant to Section
\n409(o)(2) of the Code) or fraction thereof by which the value of such Account
\nexceeds $500,000 (as adjusted pursuant to Section 409(o)(2) of the Code).<\/p>\n
(f) All distributions pursuant to this Section 7.1 shall
\nconsist entirely of the number of whole shares of Stock credited to such
\nParticipant’s Account as of the business day as of which such distribution is
\nprocessed, together with cash in lieu of fractional shares.<\/p>\n
7.2 DETERMINATION OF BENEFITS UPON DEATH.<\/p>\n
(a) Upon the death of a Participant before his Termination of
\nEmployment, all amounts credited to such Participant’s Account shall become
\nfully Vested. The Administrator shall direct the Trustee to<\/p>\n
-14-
\n 18
\ndistribute the value (as of the business day as of which such distribution is
\nprocessed) of the deceased Participant’s Account to the Participant’s
\nBeneficiary as soon as practicable after the date of the Participant’s death,
\nbut in all events no later than December 31st of the Plan Year following the
\nPlan Year in which the Participant dies.<\/p>\n
(b) Upon the death of a Former Participant after such person’s
\nTermination of Employment, if (i) such Former Participant was otherwise Vested
\nin the value of his Account; and (ii) had not otherwise received a distribution
\nfollowing his Termination of Employment, the Administrator shall direct the
\nTrustee to distribute the value (as of the business day as of which such
\ndistribution is processed) of the deceased Former Participant’s Account to the
\nFormer Participant’s Beneficiary in accordance with the provisions of Section
\n7.1, as soon as practicable after the date of the Former Participant’s death,
\nbut in all events no later than December 31st of the Plan Year following the
\nPlan Year in which the Former Participant dies.<\/p>\n
(c) Any distribution pursuant to either subsection (a) or
\nsubsection (b) of this Section 7.2 shall consist entirely of the number of
\nwhole shares of Stock credited to such Participant’s Account as of the business
\nday as of which such distribution is processed, together with cash in lieu of
\nfractional shares.<\/p>\n
(d) The Administrator may require such proper proof of death
\nand such evidence of the right of any person to receive payment of the value of
\nthe Account of a deceased Participant or Former Participant as the
\nAdministrator may deem desirable. The Administrator’s determination of death
\nand of the right of any person to receive payment shall be conclusive.<\/p>\n
(e) If a Participant or a Former Participant has a spouse, his
\nspouse shall be his Beneficiary of the distribution provided under Section 7.2
\nunless the Participant or Former Participant designates someone other than his
\nspouse as his Beneficiary (other than as a contingent Beneficiary) and the
\nspouse consents to such designation. If the Participant or Former Participant
\ndoes not have a spouse, or if the spouse consents, the Participant or Former
\nParticipant shall have the right to designate any person (including, but not
\nlimited to individuals, trusts or his estate) as Beneficiary, to receive the
\namount, if any, payable pursuant to this Plan upon his death and may from time
\nto time change any such designation in accordance with procedures established
\nby the Trustees. Each such designation shall be in a written instrument filed
\nwith the Administrator, and shall be in such form as may be required by the
\nAdministrator. In the event that a Participant or Former Participant
\ndesignates someone other than his spouse as his Beneficiary (other than as a
\ncontingent Beneficiary), such Beneficiary designation shall not be effective
\nunless (i) the spouse consents to such Beneficiary designation in writing, on a
\nform acceptable to the Administrator, and such consent is witnessed by a Plan
\nrepresentative or a notary public or (ii) the Participant or Former Participant
\nprovides the Administrator with sufficient evidence to show that the
\nParticipant or Former Participant is not married or that his spouse cannot be
\nlocated. The Trustees shall decide which Beneficiary, if any, shall have been
\nvalidly designated. If no Beneficiary has been validly designated or if the
\ndesignated Beneficiary predeceases the Participant or Former Participant, then
\nthe amount payable upon a Participant’s death, if any, shall be paid to the
\nParticipant’s or Former Participant’s estate.<\/p>\n
7.3 MINIMUM REQUIRED DISTRIBUTIONS.<\/p>\n
(a) Notwithstanding any provision of this Plan to the
\ncontrary, (i) with respect to Plan Years commencing prior to January 1, 1997,
\nthe payment of benefits to each Participant or Former Participant shall
\ncommence no later than the April 1st following the taxable year in which the
\nParticipant attains age 70-1\/2; and (ii) with respect to Plan Years commencing
\non or after January 1, 1997, the payment of benefit to each Participant or
\nFormer Participant shall commence no later than the April 1 following the later
\nof the taxable year in which the Participant attains age 70-1\/2 or the taxable
\nyear in which the Participant retires; provided, however, with respect to Plan
\nYears commencing on or after January 1, 1997, the payment of benefits to a
\nParticipant or Former Participant who is a Five Percent Owner in any Plan Years
\nending with the year in which he attained age 70-1\/2 must commence no later
\nthan the April 1st following the taxable year in which the Participant attains
\nage 70-1\/2. Payment of such benefit shall be made on or before such required
\ndate as provided in Section 7.1(e), but in no event to exceed a period that is
\nequal to the Participant’s life expectancy. Any distribution that is made
\npursuant to this<\/p>\n
-15-
\n 19
\nSection 7.3 shall satisfy the requirements of Regulation Section 1.401(a)(9)-2,
\nwhich is incorporated herein by reference.<\/p>\n
(b) The payment of benefits hereunder to a Participant or
\nFormer Participant shall commence not later than the sixtieth (60th) day after
\nthe close of the Plan Year in which the later of the following events
\noccurs:(i) the attainment by him of the Normal Retirement Age;(ii) the tenth
\n(10th) anniversary of the year in which the Participant began to participate in
\nthe Plan; or (iii) the termination of the Participant’s service with the
\nCompany.<\/p>\n
7.4 TIME OF DISTRIBUTION. To the extent that Participant consent is
\notherwise required for any distribution pursuant to Section 7.1 or Section 7.7,
\nsuch distribution may be made less than 30 days after the notice required under
\nSection 1.411(a)-11(c)(2)(ii) of the Regulations is given only if (i) the
\nAdministrator clearly informs the Participant that the Participant has a right
\nto consider, for such 30 day period, the decision of whether or not to elect a
\ndistribution (and, if applicable, a particular distribution option), and (ii)
\nthe Participant, after receiving the notice, affirmatively elects to waive such
\n30 day waiting period.<\/p>\n
7.5 DISTRIBUTION FOR MINOR BENEFICIARY. In the event a distribution
\nis to be made to a minor, then the Administrator may direct that such
\ndistribution be paid to the legal guardian, or if none, to a parent of such
\nBeneficiary or a responsible adult with whom the Beneficiary maintains his
\nresidence, or to the custodian for such Beneficiary under the Uniform Gift to
\nMinors Act or Gift to Minors Act, if such is permitted by the laws of the state
\nin which said Beneficiary resides. Such a payment to the legal guardian,
\ncustodian or parent of a minor Beneficiary shall fully discharge the Trustee,
\nEmployer, and Plan from further liability on account thereof.<\/p>\n
7.6 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN. In the event
\nthat the distribution payable to a Participant or his Beneficiary hereunder
\nshall, at the Participant’s attainment of his Normal Retirement Age, remain
\nunpaid solely by reason of the inability of the Administrator, after sending a
\nregistered letter, return receipt requested, to the last known address, and
\nafter further diligent effort, to ascertain the whereabouts of such Participant
\nor his Beneficiary, the amount so distributable shall be treated as a
\nforfeiture pursuant to the Plan. In the event a Participant or Beneficiary is
\nlocated subsequent to his benefit being reallocated, such benefit shall be
\nrestored.<\/p>\n
7.7 ADVANCE DISTRIBUTION FOR HARDSHIP.<\/p>\n
(a) The Administrator, at the election of a Participant, other
\nthan a Terminated Participant, shall direct the Trustee to distribute to any
\nParticipant up to the lesser of 100% of his Participant’s Vested Account valued
\nas of the date as of which such distribution is processed or such number of
\nshares of Stock (and cash in lieu of fractional shares) with a Fair Market
\nValue equal to the amount of the immediate and heavy financial need of the
\nParticipant. The number of shares of Stock credited to the Account of a
\nParticipant who has received a hardship withdrawal under this Section 7.7 shall
\nbe reduced accordingly. Each distribution pursuant to this Section shall be in
\na lump-sum only, consisting entirely of shares of Stock, with cash in lieu of
\nfractional shares. A need shall not be disqualified because it was reasonably
\nforeseeable or voluntarily incurred. A withdrawal under this Section shall be
\nauthorized only if, based on all relevant facts and circumstances, including
\nFederal, state and local taxes and penalties, the distribution is on account
\nof:<\/p>\n
(i) Expenses for medical care described in Section
\n213(d) of the Code previously incurred by the Participant, his spouse, or any
\nof his dependents (as defined in Section 152 of the Code)or necessary for these
\npersons to obtain medical care;<\/p>\n
(ii) The costs directly related to the purchase of a
\nprincipal residence for the Participant (excluding mortgage payments);<\/p>\n
(iii) Funeral expenses for a member of the Participant’s
\nfamily;<\/p>\n
-16-
\n 20
\n (iv) Payment of tuition and related educational fees for
\nthe next twelve (12) months of post-secondary education for the Participant,
\nhis spouse, children, or dependents; or<\/p>\n
(v) Payments necessary to prevent the eviction of the
\nParticipant from his principal residence or foreclosure on the mortgage of the
\nParticipant’s principal residence.<\/p>\n
(b) No distribution shall be made pursuant to this Section
\nunless the Administrator determines, based upon all relevant facts and
\ncircumstances, that the amount to be distributed is not in excess of the amount
\nrequired to relieve the financial need and that such need cannot be satisfied
\nfrom other resources reasonably available to the Participant. For this
\npurpose, the Participant’s resources shall be deemed to include those assets of
\nhis spouse and minor children that are reasonably available to the Participant.
\nA distribution may be treated as necessary to satisfy a financial need if the
\nAdministrator relies upon the Participant’s representation that the need cannot
\nbe relieved:<\/p>\n
(i) Through reimbursement or compensation by insurance
\nor otherwise;<\/p>\n
(ii) By reasonable liquidation of the Participant’s
\nassets, to the extent such liquidation would not itself increase the amount of
\nthe need;<\/p>\n
(iii) By cessation of elective deferrals under the MFS
\n401(k) Plan; or<\/p>\n
(iv) By other distributions or loans from the Plan or
\nany other qualified and nonqualified plans of deferred compensation, or by
\nborrowing from commercial sources on reasonable commercial terms, to the extent
\nsuch amounts would not themselves increase the amount of the need.<\/p>\n
(c) Notwithstanding the above, distributions from the
\nParticipant’s Vested Account pursuant to this Section shall be limited, as of
\nthe date of distribution, to the Participant’s Vested Account, reduced by the
\namount of any previous distributions pursuant to this Section.<\/p>\n
7.8 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION. All rights and
\nbenefits, including elections, provided to a Participant in this Plan shall be
\nsubject to the rights afforded to any “alternate payee” under a Qualified
\nDomestic Relations Order. Furthermore, a distribution to an “alternate payee”
\nshall be permitted if such distribution is authorized by a Qualified Domestic
\nRelations Order, even if the affected Participant has not separated from
\nservice and has not reached the “earliest retirement age” under the Plan. For
\nthe purposes of this Section, “alternate payee,” and “earliest retirement age”
\nshall have the meaning set forth under Section 414(p) of the Code.<\/p>\n
7.9 DIRECT ROLLOVER.<\/p>\n
(a) Notwithstanding any provision of the Plan to the contrary
\nthat would otherwise limit a Distributee’s election under this Section, a
\nDistributee may elect, at the time and in the manner prescribed by the
\nAdministrator, to have any portion of an Eligible Rollover Distribution paid
\ndirectly to an Eligible Retirement Plan specified by the Distributee in a
\nDirect Rollover.<\/p>\n
(b) For purposes of this Section the following definitions
\nshall apply:<\/p>\n
(i) An “Eligible Rollover Distribution” is any
\ndistribution of all or any portion of the balance to the credit of the
\nDistributee, except that an Eligible Rollover Distribution does not include:
\nany distribution that is one of a series of substantially equal periodic
\npayments (not less frequently than annually) made for the life (or life
\nexpectancy) of the Distributee or the joint lives (or joint life expectancies)
\nof the Distributee and the Distributee’s designated beneficiary, or for a
\nspecified period of ten years or more; any distribution to the extent such
\ndistribution is required under Section 401(a)(9) of the Code; and the portion
\nof any distribution that is not includible in gross income (determined without
\nregard to the exclusion for net unrealized appreciation with respect to
\nemployer securities).<\/p>\n
-17-
\n 21
\n (ii) An “Eligible Retirement Plan” is an individual
\nretirement account described in Section 408(a) of the Code, an individual
\nretirement annuity described in Section 408(b) of the Code, an annuity plan
\ndescribed in Section 403(a) of the Code, or a qualified trust described in
\nSection 401(a) of the Code, that accepts the Distributee’s Eligible Rollover
\nDistribution. However, in the case of an Eligible Rollover Distribution to the
\nsurviving spouse, an Eligible Retirement Plan is an individual retirement
\naccount or individual retirement annuity.<\/p>\n
(iii) A “Distributee” includes an Employee or former
\nEmployee. In addition, the Employee’s or former Employee’s surviving spouse
\nand the Employee’s or former Employee’s spouse or former spouse who is the
\nalternate payee under a Qualified Domestic Relations Order, are Distributees
\nwith regard to the interest of the spouse or former spouse.<\/p>\n
(iv) A “Direct Rollover” is a payment by the Plan to the
\nEligible Retirement Plan specified by the Distributee.<\/p>\n
ARTICLE VIII<\/p>\n
AMENDMENT, TERMINATION AND MERGERS<\/p>\n
8.1 AMENDMENT.<\/p>\n
(a) The Company shall have the right at any time to amend the
\nPlan, subject to the limitations of this Section. Any such amendment shall be
\nadopted by formal action of the Board and executed by an officer authorized to
\nact on behalf of the Company. However, any amendment which affects the rights,
\nduties or responsibilities of the Trustee and Administrator may only be made
\nwith the Trustee’s and Administrator’s written consent. Any such amendment
\nshall become effective as provided therein upon its execution. The Trustee
\nshall not be required to execute any such amendment unless the Trust provisions
\ncontained herein are a part of the Plan and the amendment affects the duties of
\nthe Trustee hereunder.<\/p>\n
(b) No amendment to the Plan shall be effective if it
\nauthorizes or permits any part of the Trust Fund (other than such part as is
\nrequired to pay taxes and administration expenses) to be used for or diverted
\nto any purpose other than for the exclusive benefit of the Participants or
\ntheir Beneficiaries or estates; or causes any reduction in the amount credited
\nto the account of any Participant; or causes or permits any portion of the
\nTrust Fund to revert to or become property of the Employer.<\/p>\n
(c) Except as permitted by Regulations, no Plan amendment or
\ntransaction having the effect of a Plan amendment (such as a merger, plan
\ntransfer or similar transaction) shall be effective to the extent it eliminates
\nor reduces any “Section 411(d)(6) protected benefit” or adds or modifies
\nconditions relating to “Section 411(d)(6) protected benefits” the result of
\nwhich is a further restriction on such benefit unless such protected benefits
\nare preserved with respect to benefits accrued as of the later of the adoption
\ndate or effective date of the amendment. “Section 411(d)(6) protected
\nbenefits” are benefits described in Section 411(d)(6)(A) of the Code, early
\nretirement benefits and retirement-type subsidies, and optional forms of
\nbenefit.<\/p>\n
(d) Notwithstanding anything in this section 8.1 to the
\ncontrary, the provisions of the Plan relating to the allocation of
\ncontributions made by the Employer pursuant to section 4.1 shall not be amended
\nmore than once every six months, other than to comport with changes in the
\nCode, the Act or the rules thereunder.<\/p>\n
8.2 TERMINATION.<\/p>\n
(a) The Company shall have the right at any time to terminate
\nthe Plan by delivering to the Trustee and Administrator written notice of such
\ntermination. Upon any full or partial termination, all amounts credited to the
\naffected Participants’ Accounts shall become 100% Vested and shall not
\nthereafter be subject to<\/p>\n
-18-
\n 22
\nforfeiture, and all unallocated amounts shall be allocated to the accounts of
\nall Participants in accordance with the provisions hereof.<\/p>\n
(b) Upon the full termination of the Plan, the Company shall
\ndirect the distribution of the assets of the Trust Fund to Participants as
\nprovided in Section 7.1. Distributions to a Participant pursuant to this
\nSection shall be made in shares of Stock. Except as permitted by Regulations,
\nthe termination of the Plan shall not result in the reduction of “Section
\n411(d)(6) protected benefits” in accordance with Section 8.1(c).<\/p>\n
8.3 MERGER OR CONSOLIDATION. The Plan may be merged or consolidated
\nwith, or its assets and\/or liabilities may be transferred to any other plan and
\ntrust only if the benefits would be received by a Participant of this Plan, in
\nthe event of a termination of the Plan immediately after such transfer, merger
\nor consolidation, are at least equal to the benefits the Participant would have
\nreceived if the Plan had terminated immediately before the transfer, merger or
\nconsolidation, and such transfer, merger or consolidation does not otherwise
\nresult in the elimination or reduction of any “Section 411(d)(6) protected
\nbenefits” in accordance with Section 8.1(c).<\/p>\n
ARTICLE IX<\/p>\n
MISCELLANEOUS<\/p>\n
9.1 PARTICIPANT’S RIGHTS. This Plan shall not be deemed to
\nconstitute a contract between the Employer and any Participant or to be a
\nconsideration or an inducement for the employment of any Participant or
\nEmployee. Nothing contained in this Plan shall be deemed to give any
\nParticipant or Employee the right to be retained in the service of the Employer
\nor to interfere with the right of the Employer to discharge any Participant or
\nEmployee at any time regardless of the effect which such discharge shall have
\nupon him as a Participant of this Plan.<\/p>\n
9.2 ALIENATION. Subject to the exceptions below, no benefit which
\nshall be payable out of the Trust Fund to any person (including a Participant
\nor his Beneficiary) shall be subject in any manner to anticipation, alienation,
\nsale, transfer, assignment, pledge, encumbrance or charge, and any attempt to
\nanticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the
\nsame shall be void; and no such benefit shall in any manner be liable for, or
\nsubject to, the debts, contracts, liabilities, engagements, or torts of any
\nsuch person, nor shall it be subject to attachment or legal process for or
\nagainst such person, and the same shall not be recognized by the Trustee,
\nexcept to such extent as may be required by law. This provision shall not
\napply to a Qualified Domestic Relations Order and those other domestic
\nrelations orders permitted to be so treated by the Administrator under the
\nprovisions of the Act. The Administrator shall establish a written procedure
\nto determine the qualified status of domestic relations orders and to
\nadminister distributions under such qualified orders. Further, to the extent
\nprovided under a Qualified Domestic Relations Order, a former spouse of a
\nParticipant shall be treated as the spouse or surviving spouse for all purposes
\nunder the Plan.<\/p>\n
9.3 CONSTRUCTION OF PLAN. This Plan shall be construed and enforced
\naccording to the Act and the laws of the State of Nebraska, other than its laws
\nrespecting choice of law, to the extent not preempted by the Act.<\/p>\n
9.4 LEGAL ACTION. In the event any claim, suit, or proceeding is
\nbrought regarding the Trust and\/or Plan established hereunder to which the
\nTrustee or the Administrator may be a party, and such claim, suit, or
\nproceeding is resolved in favor of the Trustee or Administrator, they shall be
\nentitled to be reimbursed from the Trust Fund for any and all costs, attorney’s
\nfees, and other expenses pertaining thereto incurred by them for which they
\nshall have become liable.<\/p>\n
9.5 PROHIBITION AGAINST DIVERSION OF FUNDS.<\/p>\n
(a) Except as provided below and otherwise specifically
\npermitted by law, it shall be impossible by operation of the Plan or of the
\nTrust, by termination of either, by power of revocation or amendment, by the
\nhappening of any contingency, by collateral arrangement or by any other means,
\nfor any part of the corpus<\/p>\n
-19-
\n 23
\nor income of any trust fund maintained pursuant to the Plan or any funds
\ncontributed thereto to be used for, or diverted to, purposes other than the
\nexclusive benefit of Participants, Retired Participants, or their
\nBeneficiaries.<\/p>\n
(b) In the event the Employer shall make an excessive
\ncontribution under a mistake of fact pursuant to Section 403(c)(2)(A) of the
\nAct, the Employer may demand repayment of such excessive contribution at any
\ntime within one (1) year following the time of payment and the Trustees shall
\nreturn such amount to the Employer within the one (1) year period. Earnings of
\nthe Plan attributable to the excess contributions may not be returned to the
\nEmployer but any losses attributable thereto must reduce the amount so
\nreturned.<\/p>\n
9.6 BONDING. Every Fiduciary, except a bank or an insurance company,
\nunless exempted by the Act and regulations thereunder, shall be bonded in an
\namount not less than 10% of the amount of the funds such Fiduciary handles;
\nprovided, however, that the minimum bond shall be $1,000 and the maximum bond,
\n$500,000. The amount of funds handled shall be determined at the beginning of
\neach Plan Year by the amount of funds handled by such person, group, or class
\nto be covered and their predecessors, if any, during the preceding Plan Year,
\nor if there is no preceding Plan Year, then by the amount of the funds to be
\nhandled during the then current year. The bond shall provide protection to the
\nPlan against any loss by reason of acts of fraud or dishonesty by the Fiduciary
\nalone or in connivance with others. The surety shall be a corporate surety
\ncompany (as such term is used in Section 412(a)(2) of the Act), and the bond
\nshall be in a form approved by the Secretary of Labor. Notwithstanding
\nanything in the Plan to the contrary, the cost of such bonds shall be an
\nexpense of and may, at the election of the Administrator, be paid from the
\nTrust Fund or by the Employer.<\/p>\n
9.7 RECEIPT AND RELEASE FOR PAYMENTS. Any payment to any
\nParticipant, his legal representative, Beneficiary, or to any guardian or
\ncommittee appointed for such Participant or Beneficiary in accordance with the
\nprovisions of the Plan, shall, to the extent thereof, be in full satisfaction
\nof all claims hereunder against the Trustee and the Employer, either of whom
\nmay require such Participant, legal representative, Beneficiary, guardian or
\ncommittee, as a condition precedent to such payment, to execute a receipt and
\nrelease thereof in such form as shall be determined by the Trustee or Employer.<\/p>\n
9.8 ACTION BY THE EMPLOYER. Whenever the Employer under the terms of
\nthe Plan is permitted or required to do or perform any act or matter or thing,
\nit shall be done and performed by a person duly authorized by its legally
\nconstituted authority.<\/p>\n
9.9 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY. The “named
\nFiduciaries” of this Plan are (1) the Employer, (2) the Administrator and (3)
\nthe Trustee. The named Fiduciaries shall have only those specific powers,
\nduties, responsibilities, and obligations as are specifically given them under
\nthe Plan. In general, the Employer shall have the sole responsibility for
\nmaking the contributions provided for under Section 4.1; and shall have the
\nsole authority to appoint and remove the Trustee and Administrator; to
\nformulate the Plan’s “funding policy and method”; and to amend or terminate, in
\nwhole or in part, the Plan. The Administrator shall have the sole
\nresponsibility for the administration of the Plan, which responsibility is
\nspecifically described in the Plan. The Trustee shall have the sole
\nresponsibility of management of the assets held under the Trust, all as
\nspecifically provided in the Plan. Each named Fiduciary warrants that any
\ndirections given, information furnished, or action taken by it shall be in
\naccordance with the provisions of the Plan, authorizing or providing for such
\ndirection, information or action. Furthermore, each named Fiduciary may rely
\nupon any such direction, information or action of another named Fiduciary as
\nbeing proper under the Plan, and is not required under the Plan to inquire into
\nthe propriety of any such direction, information or action. It is intended
\nunder the Plan that each named Fiduciary shall be responsible for the proper
\nexercise of its own powers, duties, responsibilities and obligations under the
\nPlan. No named Fiduciary shall guarantee the Trust Fund in any manner against
\ninvestment loss or depreciation in asset value. Any person or group may serve
\nin more than one Fiduciary capacity. In the furtherance of their
\nresponsibilities hereunder, the “named Fiduciaries” shall be empowered to
\ninterpret the Plan and Trust and to resolve ambiguities, inconsistencies and
\nomissions, which findings shall be binding, final and conclusive.<\/p>\n
-20-
\n 24
\n 9.10 APPROVAL BY INTERNAL REVENUE SERVICE.<\/p>\n
(a) Notwithstanding anything herein to the contrary,
\ncontributions to this Plan are conditioned upon the initial qualification of
\nthe Plan under Section 401 of the Code. If the Plan receives an adverse
\ndetermination with respect to its initial qualification, then the Plan may
\nreturn such contributions to the Employer within one year after such
\ndetermination, provided the application for the determination is made by the
\ntime prescribed by law for filing the Employer’s return for the taxable year in
\nwhich the Plan was adopted, or such later date as the Secretary of the Treasury
\nmay prescribe.<\/p>\n
(b) Notwithstanding any provisions to the contrary, any
\ncontribution by the Employer to the Trust Fund is conditioned upon the
\ndeductibility of the contribution by the Employer under the Code and, to the
\nextent any such deduction is disallowed, the Employer may, within one (1) year
\nfollowing the disallowance of the deduction, demand repayment of such
\ndisallowed contribution and the Trustee shall return such contribution within
\none (1) year following the disallowance. Earnings of the Plan attributable to
\nthe excess contribution may not be returned to the Employer, but any losses
\nattributable thereto must reduce the amount so returned.<\/p>\n
9.11 UNIFORMITY. All provisions of this Plan shall be interpreted and
\napplied in a uniform, nondiscriminatory manner.<\/p>\n
9.12 VOTING AND TENDER RIGHTS. All voting, tender and other similar
\nrights with respect to the Stock allocated to the Participant’s Accounts shall
\nbe exercised exclusively by the Administrator.<\/p>\n
9.13 PUT OPTION. If at the time of distribution, Stock distributed
\nfrom the Trust Fund are not treated as “readily tradable on an established
\nmarket” within the meaning of Section 409(h) of the Code and the Regulations,
\nsuch Stock shall be subject to a put option in the hands of a Qualified Holder
\n(as defined in Section 9.13(a) by which such Qualified Holder may sell all or
\nany part of the Stock distributed to him by the Trust to the Company; provided,
\nhowever, that the Company may in its discretion grant the Trust an option to
\nassume the Company’s rights and obligations pursuant to this Section 9.13 with
\nrespect to any distributed Stock. Should the Company grant the Trust such an
\noption with respect to any distributed Stock but the Trust declines to purchase
\nall or any part of such Stock, the Company shall purchase those Stock that the
\nTrust declines to purchase. The put option shall be subject to the following
\nconditions:<\/p>\n
(a) The term “Qualified Holder” shall mean the Participant or
\nBeneficiary receiving the distribution of such Stock, any other party to whom
\nthe Stock are transferred by gift or by reason of death, and also any trustee
\nof an individual retirement account (as defined under Section 408 of the Code)
\nto which all or any portion of the distributed Stock is transferred pursuant to
\na tax-free “rollover” transaction satisfying the requirements of Sections 402
\nand 408 of the Code.<\/p>\n
(b) During the 60-day period following any distribution of
\nsuch Stock, a Qualified Holder shall have the right to require the Company to
\npurchase all or a portion of the distributed Stock held by the Qualified
\nHolder. The purchase price to be paid for any such Stock shall be their fair
\nmarket value determined (1) as of the Valuation Date coinciding with or next
\npreceding the exercise of the put option under this Section 9.13(b) or, (2) in
\nthe case of a transaction between the Plan and a “disqualified person” within
\nthe meaning of Section 4975(e)(2) of the Code, as of the date of the
\ntransaction.<\/p>\n
(c) If a Qualified Holder shall fail to exercise his put
\noption right under Section 9.13(b), the option right shall temporarily lapse
\nupon the expiration of the 60-day period. As soon as practicable following the
\nlast day of the Plan Year in which the 60-day option period expires, the
\nCompany shall notify the non-electing Qualified Holder (if he is then a
\nshareholder of record) of the valuation of the Stock as of that date. During
\nthe 60-day period following receipt of such valuation notice, the Qualified
\nHolder shall again have the right to require the Company to purchase all or any
\nportion of the distributed Stock. The purchase price to be paid therefor shall
\nbe based on the valuation of the Stock (1) as of the Valuation Date coinciding
\nwith or next preceding the exercise<\/p>\n
-21-
\n 25
\nof the option under this Section 9.13(c) or, (2) in the case of a transaction
\nbetween the Plan and a “disqualified person” within the meaning of Section
\n4975(3)(2) of the Code, as of the date of the transaction.<\/p>\n
(d) The foregoing put options under Section 9.13(b) and (c)
\nhereof shall be effective solely against the Company and shall not obligate the
\nPlan or Trust in any manner.<\/p>\n
(e) Except as otherwise required or permitted by the Code, the
\nput options under Section 9.13 shall satisfy the requirements of Section
\n54.4975-7(b) of the Regulations to the extent, if any, that such requirements
\napply to such put options.<\/p>\n
9.14 EXERCISE OF PUT OPTION.<\/p>\n
If a Qualified Holder exercises his put option under Section
\n9.13, payment for the Stock repurchased shall be made, in the case of a
\ndistribution of a Participant’s entire Account within one taxable year, in
\nsubstantially equal annual payments over a period beginning not later than 30
\ndays after the exercise of the put option and exceeding five years (provided
\nthat adequate security and reasonable interest are provided with respect to
\nunpaid amounts) or, in the case of other distributions, not later than 30 days
\nafter such exercise.<\/p>\n
9.15 CHANGES TO COMPANY STOCK. If any change is made to the shares of
\nCompany Stock by reason of any merger, consolidation, reorganization,
\nrecapitalization, stock dividend, split up, combination of shares, exchange of
\nshares, change in corporate structure, or otherwise, appropriate adjustments
\nshall be made by the Administrator to the kind and maximum number of shares
\nsubject to the Plan (including the maximum number of shares issuable to any one
\nperson) and the kind and number of shares and price per share of stock subject
\nto distribution. No fractional shares of Stock shall be issued under the Plan
\non account of any such adjustment, and rights to Stock shall always be limited
\nafter such an adjustment to the lower full share.<\/p>\n
ARTICLE X<\/p>\n
PARTICIPATING EMPLOYERS<\/p>\n
10.1 EMPLOYEE TRANSFER. It is anticipated that an Employee may be
\ntransferred between Participating Employers, and in the event of any such
\ntransfer, the Employee involved shall carry with him his accumulated service
\nand eligibility. No such transfer shall effect a termination of employment
\nhereunder, and the Participating Employer to which the Employee is transferred
\nshall thereupon become obligated hereunder with respect to such Employee in the
\nsame manner as was the Participating Employer from whom the Employee was
\ntransferred.<\/p>\n
10.2 PARTICIPATING EMPLOYER’S CONTRIBUTION. All contributions made by
\na Participating Employer, as provided for in this Plan, shall be determined
\nseparately by each Participating Employer, and shall be allocated only among
\nthe Participants eligible to share of the Company or Participating Employer
\nmaking the contribution. On the basis of the information furnished by the
\nAdministrator, the Trustee shall keep separate books and records concerning the
\naffairs of each Participating Employer hereunder and as to the accounts and
\ncredits of the Employees of each Participating Employer.<\/p>\n
10.3 AMENDMENT. Amendment of this Plan by the Company at any time
\nwhen there shall be a Participating Employer hereunder shall only be by the
\nwritten action of each and every Participating Employer and with the consent of
\nthe Trustee where such consent is necessary in accordance with the terms of
\nthis Plan.<\/p>\n
10.4 DISCONTINUANCE OF PARTICIPATION. Any Participating Employer
\nshall be permitted to discontinue or revoke its participation in the Plan. At
\nthe time of any such discontinuance or revocation, satisfactory evidence
\nthereof and of any applicable conditions imposed shall be delivered to the
\nTrustee. The Trustee shall thereafter transfer, deliver and assign Trust Fund
\nassets allocable to the Participants of such Participating Employer to such new
\nTrustee as shall have been designated by such Participating Employer, in the
\nevent that it has established a separate pension plan for its Employees,
\nprovided however, that no such transfer shall be made if the result is the<\/p>\n
-22-
\n 26
\nelimination or reduction of any “Section 411(d)(6) protected benefits” in
\naccordance with Section 8.1(c). If no successor is designated, the Trustee
\nshall retain such assets for the Employees of said Participating Employer
\npursuant to the provisions of the Trust. In no such event shall any part of
\nthe corpus or income of the Trust as it relates to such Participating Employer
\nbe used for or diverted to purposes other than for the exclusive benefit of the
\nEmployees of such Participating Employer.<\/p>\n
10.5 ADMINISTRATOR’S AUTHORITY. The Administrator shall have
\nauthority to make any and all necessary rules or regulations, binding upon all
\nParticipating Employers and all Participants, to effectuate the purpose of this
\nArticle.<\/p>\n
ARTICLE XI<\/p>\n
TOP HEAVY PLANS<\/p>\n
11.1 DEFINITIONS. For purposes of this Article XI, the following
\ndefinitions shall apply unless the context clearly indicates otherwise:<\/p>\n
(a) “Aggregation Group” shall mean a group of plans consisting
\nof all plans maintained by the Company or an Affiliated Employer in which one
\nor more Key Employees are participants whether or not such plans are terminated
\nand whether or not such plans are sponsored by a corporation; all other plans
\nmaintained by the Company or an Affiliated Employer that enable any plan in
\nwhich a Key Employee is participating to comply with the coverage and
\nnondiscrimination requirements of Sections 401(a)(4) and 410(b) of the Code;
\nand all plans of the Company or an Affiliated Employer which the Company
\ndesignates as part of the Aggregation Group, provided the resulting Aggregation
\nGroup meets the coverage and non-discrimination requirements of Sections
\n401(a)(4) and 410(b) of the Code.<\/p>\n
(b) “Determination Date” shall mean the last day of the
\npreceding Plan Year.<\/p>\n
(c) “Five Percent Owner” shall have the meaning set forth in
\nSection 1.1(q) except that for purposes of this subsection (c) the Company and
\nits Affiliated Employers shall not be treated as a single employer and a
\nperson’s ownership interest in the Company or such Affiliated Employers shall
\nnot be aggregated.<\/p>\n
(d) “Key Employee” shall mean any individual who is, or was,
\nan Employee of the Employer or an Affiliated Employer and is or was, at any
\ntime during the Plan Year ending with the Determination Date or any of the four
\n(4) preceding Plan Years:<\/p>\n
(i) An Officer, but only if the Employee’s Total
\nCompensation exceeds fifty percent (50%) of the dollar limit set forth in
\nSection 415(b)(1)(A) of the Code, as adjusted for increases in the cost of
\nliving.<\/p>\n
(ii) A Top Ten Owner, but only if the Employee’s Total
\nCompensation exceeds the dollar limit set forth in Section 415(b)(1)(A) of the
\nCode, as adjusted for increases in the cost-of-living.<\/p>\n
(iii) A Five Percent Owner; or<\/p>\n
(iv) A One Percent Owner whose Total Compensation
\nexceeds $150,000. The term “Key Employee” shall also include the Beneficiary
\nof an individual described in clauses (i) through (iv) of this Subsection (d).<\/p>\n
(e) “Non-Key Employee” shall mean each Employee who is not a
\nKey Employee.<\/p>\n
-23-
\n 27
\n (f) “One Percent Owner” shall have the same meaning as Five
\nPercent Owner, except that “one percent (1%)” shall be substituted for “five
\npercent (5%),” wherever the latter term appears in Subsection (c) of this
\nSection 1.1(q).<\/p>\n
(g) “Super Top-Heavy Plan” shall have the same meaning as
\n“Top-Heavy Plan” except that, the phrase “ninety percent (90%)” shall be
\nsubstituted for the phrase “sixty percent (60%)” wherever the latter phrase
\nappears in Section 11.1(h).<\/p>\n
(h) “Top-Heavy Plan” The Plan shall be considered a Top-Heavy
\nPlan if, as of the Determination Date:(i) the Plan is not part of an
\nAggregation Group and the Account balances of Key Employees participating in
\nthe Plan exceeds sixty percent (60%) of the Account balances of all
\nParticipants in the Plan; or (ii)The Plan is part of an Aggregation Group and
\nthe Account balances and present value of the accrued benefits of Key Employees
\nparticipating in the Aggregation Group exceed sixty percent (60%) of the
\nAccount balances and present value of the cumulative accrued benefits of all
\nparticipating employees in the Aggregation Group, as computed in each case in
\naccordance with Section 416 of the Code. For purposes of this Subsection (h),
\na Participant’s Account balance or accrued benefit shall not include any tax
\nfree rollover (as described in Section 402(c) or Section 408(d)(3) of the Code)
\nor plan-to-plan transfer which (A) is made from the Plan (or, if applicable,
\nplans which are part of the Aggregation Group) and the plan to which the tax
\nfree rollover or plan-to-plan transfer is made is an employee benefit plan
\nwhich is maintained by the Company or an Affiliated Employer and the tax free
\nrollover or plan-to-plan transfer is not initiated by the Employee or (B) is
\nmade to the Plan (or, if applicable, plans which are part of the Aggregation
\nGroup) if the plan from which the tax free rollover or plan-to-plan transfer is
\nmade is an employee benefit plan which is not maintained by the Company or an
\nAffiliated Employer and the tax free rollover or plan-to-plan transfer is
\ninitiated by the Employee. The Account balances or accrued benefit of any
\nParticipant or Former Participant shall also include any distributions from the
\nPlan (or, if applicable, from any plan in the Aggregation Group) made to the
\nParticipant or Former Participant or his Beneficiary during the Plan Year
\nending with the Determination Date and any of the four (4) preceding Plan
\nYears. Solely for purposes of determining if the Plan, or any other plan
\nincluded in a required Aggregation Group of which this Plan is a part, is Top-
\nHeavy, the accrued benefit of a Non-Key Employee shall be determined under the
\nmethod, if any, that uniformly applies for accrual purposes under all plans
\nmaintained by Affiliated Employers, or if there is no such method, as if such
\nbenefit accrued not more rapidly than the shortest accrual rate permitted under
\nthe fractional accrual rate of Section 411(b)(1)(C) of the Code. For purposes
\nof this Section 11.1(h) the accrued benefit of an individual, who has not
\nperformed any service for the employer maintaining the plan at any time during
\nthe five (5) year period ending on the Determination Date, will be excluded
\nfrom the calculation to determine whether a plan is Top-Heavy.<\/p>\n
(i) “Top Ten Owner” shall mean one of the ten (10) Employees
\nowning, or considered as owning, within the meaning of Section 318 of the Code,
\nthe largest interest in the Company or an Affiliated Employer. For purposes of
\nthis Subsection (i), if two Employees have the same ownership interest in the
\nCompany or an Affiliated Employer, the Employee with the greater Compensation
\nshall be considered as owning the larger interest in the Company or an
\nAffiliated Employer.<\/p>\n
(j) “Total Compensation” shall mean the Employee’s
\ncompensation as defined in Section 4.5(f) of the Plan. Notwithstanding the
\npreceding, the term “Total Compensation” shall not include any amounts in
\nexcess of $150,000 as adjusted in accordance with Section 401(a)(17)(B) and the
\nRegulations. In determining the Total Compensation of a Participant for
\npurposes of this limitation, with respect to Plan Years beginning prior to
\nJanuary 1, 1997, the aggregation rules of Section 414(q)(6) of the Code shall
\napply to any Participant who is a member of a family of a Five Percent Owner or
\na Highly Compensated Employee in the group consisting of the ten (10) employees
\npaid the highest Total Compensation. However, in applying these rules the term
\n“family” shall include only the spouse of the Participant and any living
\ndescendants of the Participant who have not attained age nineteen (19) before
\nthe close of the Plan Year. If as a result of the application of the “family”
\nrules the adjusted $150,000 limitation is exceeded, then the limitation shall
\nbe prorated among the affected individuals in proportion<\/p>\n
-24-
\n 28
\nto each such individual’s Total Compensation as determined under this
\nSubsection prior to the application of this limitation.<\/p>\n
11.2 MINIMUM CONTRIBUTIONS. For each Plan Year during which the Plan
\nis a Top-Heavy Plan, the amount of the Employer’s contributions allocated to
\nthe Account of each Non-Key Employee who has satisfied the eligibility
\nrequirements of Article III hereof, shall be an amount at least equal to the
\nlesser of: (i)three percent (3%) of the Non-Key Employee’s Total Compensation
\nfor the calendar year ending with or within the Plan Year; or (ii) a percentage
\nwhich is equal to the highest percentage of Total Compensation contributed by
\nthe Company on behalf of any Key Employee.<\/p>\n
The amount the Company is required to contribute on behalf of
\neach Non-Key Employee pursuant to this Section 11.2 shall be reduced by the
\namount of any Employer contributions made on behalf of such Non-Key Employee
\npursuant to Section 4.1 of the Plan or pursuant to another defined contribution
\nplan maintained by the Company or an Affiliated Employer.<\/p>\n
11.3 COORDINATION WITH OTHER PLANS. Notwithstanding any other
\nprovisions of this Article XI to the contrary, the contributions to this Plan
\nmade on behalf of a Non-Key Employee by the Employer solely because of the
\nprovisions of this Article XI, shall be reduced by the amount of any
\ncontributions made by the Company or an Affiliated Employer on behalf of such
\nNon-Key Employee to any other defined contribution plan which meets the
\nrequirements of Section 401(a) of the Code, other than employer contributions
\nmade pursuant to a cash or deferral arrangement which meets the requirements of
\nSection 401(k) of the Code.<\/p>\n
11.4 MAXIMUM BENEFITS. If, in any Limitation Year in which the Plan
\nis a Top-Heavy Plan, a Participant also participates in one or more defined
\nbenefit plans maintained by the Company or an Affiliated Employer, then for
\npurposes of Sections 4.5(c) and (d) respectively, the phrase “1.0” shall be
\nsubstituted for the phrase “1.25” wherever the latter phrase appears.
\nNotwithstanding the preceding, the provisions of this Section 11.4 shall not
\napply if the Plan is not a Super Top Heavy Plan and the Company or Affiliated
\nEmployer contributes, on behalf of each Non-Key Employee who is entitled to
\nreceive a benefit under Section 11.3, an amount at least equal to one percent
\n(1%) of the Participant’s Total Compensation for the calendar year ending with
\nor within the Plan Year. The amount contributed on behalf of each Non-Key
\nEmployee under this Section 11.4 shall be in addition to any contribution made
\non his behalf pursuant to Section 11.2, but shall be reduced by the amount by
\nwhich (i) any Company or Affiliated Employer contributions made on behalf of
\nsuch Non-Key Employee under the Plan or any other defined contribution plan
\nmaintained by the Company or an Affiliated Employer exceed (ii) the
\ncontributions made on his behalf under Section 11.2 hereof.<\/p>\n
11.5 AGGREGATION OF AFFILIATED EMPLOYERS. Except as provided in
\nSection 11.1(c), for purposes of this Article XI, Affiliated Employers shall be
\ntreated as if they were the Employer.<\/p>\n
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